Winterowd v. Christensen
| Decision Date | 20 November 1926 |
| Docket Number | 4433 |
| Citation | 68 Utah 546,251 P. 360 |
| Court | Utah Supreme Court |
| Parties | WINTEROWD v. CHRISTENSEN et al |
Appeal from District Court, Second District, Weber County; J. N Kimball, Judge.
Action for personal injuries by Bessie Winterowd against A. C Christensen and others. From a judgment of dismissal plaintiff appeals.
JUDGMENT REVERSED, and new trial granted.
Bagley, Judd & Ray, of Salt Lake City, for appellant.
Allen T. Sanford and Irvine, Skeen & Thurman, all of Salt Lake City, for respondents.
This is an action to recover damages for personal injuries upon the ground of negligence. Three defendants were joined in the complaint. With the plaintiff's consent two of them were later dismissed, leaving the action standing against Amusement Concession Company as the sole defendant.
A trial was commenced before the court and a jury, and the plaintiff presented her evidence, whereupon the court upon defendant's motion granted a nonsuit and dismissed the action. The plaintiff has appealed. The main question to be decided is whether the nonsuit was properly granted.
The defendant as lessee conducted and operated a summer resort in Davis county, called the Lagoon Resort, devoted to pleasure and amusements, to which the public was invited and for admission to which a fee was charged. In connection with the resort the defendant maintained and conducted a baseball grounds, including an elevated grand stand with seats for the use of persons attending the ball games played there. The ball grounds adjoined the resort proper, and was inclosed with a fence. Gates permitted entrance to the ball park from the resort. On July 20, 1922, there was a meeting of the members of the Railway Mail Associations of Salt Lake City and Ogden, at the Lagoon Resort, and as a part of the entertainment a baseball game was played on the ball grounds above described. There was proof that permission to use the ball grounds for the purpose had been granted by the defendant.
The plaintiff attended the meeting with her husband, and paid for admission to the resort. In the afternoon a baseball game, between rival teams of the Railway Mail Associations of Salt Lake City and Ogden, was being played. The gate between the resort proper and the ball grounds was open, and persons in considerable numbers were passing into the ball grounds and taking seats in the grand stand to witness the game. The plaintiff's husband was one of the baseball players. The plaintiff entered the grounds through the gate, and, while walking in the grand stand to obtain a seat, upon a floor or platform elevated two or three feet from the ground, a board in the floor broke and gave way under her, causing her to fall and her foot and leg to drop through the floor, in which manner she sustained the injuries complained of.
It was shown that the defendant had had control and possession of the premises for several years, during which time baseball games were frequently played at the ball grounds in connection with outings and excursions to the resort. The board in the floor which broke under the plaintiff's weight was described as a "2x10 plank," which was "decomposed and dark, soggy, pithy." "It broke without any splinters at all." It was further described as "rotten" and breaking easily. That it appeared like it might have been rotten and defective when first put in the floor. The board was wet from rain at the time of the accident. A witness said "when dry it would be rather porous" and observable to a man making an...
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